# LAXMINARA YAN AND ANOTIIER v. RETURNING OFFICER AND OTHERS

- **Citation:** [1974] 1 S.C.R. 822
- **Court:** Supreme Court of India
- **Decided:** 1973-09-28
- **Case number:** Civil Appeal No. 1014 of 1972
- **Bench:** P. Jaganmohan Reddy, S. N. Dwlyedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/laxminara-yan-and-anotiier-v-returning-officer-and-others-6032
- **Pages:** 30

## Headnote

Representation of the People Act (43 of
1951). Ss.
98,
116A,
119,
123(4)Corrupt practice-Scope of review by appellate Court-'lncurred' in S·
119, meaning of-Conduct of Election Rules, 1961, r. 63-Scope of.
Evidence Act ( 1 of 1872) Ss, 98 and 159 to 161-Record of speeches in
shorthand and long hand-Admissibility.
'Bhrashtachar', meaning of.
JD and RS were two of the five candidates for election to the Lok Sabha.
JD was the returned candidate .and RS polled the next highest number. of votes.
After the counting of the votes, RS applied for a recount under r. 63 of the
Cond.uct of Election RuL~s, 1961. In the petition he alleged that the difference
in votes obtained by JD and himself was marginal, that more than 7000 votes
were declared invalid; that votes have not only been declared as
invalid but
also that ''admitted disputed votes" were not properly counted, and that . the
number of votes declared invalid materially affected the result of the election.
He also alleged certain irregularities. The Returning Officer directed that all the
votes cast in favour of JD and RS as well as the rejected votes should be recounted.
There was a slight discrepancy in the number of votes obtained by
each of the two candidates, and in the number of rejected votes, in the recount,
but there was no effect on the result of the election.
In a petition challenging the election of JD the
followin~ grounds were
urged, (!) that the election should be set aside under s. IQO(!) (iii) and (iv)
of the Representation of the People Act, 1951, because, the votes have-not been
properly counted as valid or invalid and there was a violation of rule 63; and
(2) that JD was guility of corrupt practice under s. 123 ( 4) of the Act in that
statements were made and __ documents published, by person, with the consent of
JD attacking the personal Character of RS; that his election agent distributed a
weekly containing an attack on the personal character of RS; and that JD himself made such statements and published such documents. The petition was dismis.ed by the High Court.
Dismissing the appeal to this Court (except in respect of costs),
HELD : (I) The plea in the election petition that valid votes have been
counted as invalid and invalid votes as valid would not include the plea that
anY valid votes of RS and other candidates have been counted as valid for JD.
Therefore, it was not necessary to recount the votes of candidates other than
JD and RS.
On the allegations contained in the application .to the Returning
Officer he could not have ordered a recount of all the votes and his order
directing recount was not in contravention of rule 68.
The discrepancies in the:
number of votes was satisfactorily explained and there was no acceptable evi-
. dence of the alleged irregularities. [826 C; 827 A-BJ
(2)(i) Section !16A of the Act provides for appeal
to this Court . from
an order of the High Court dismissing an election petition and an appeal lies
on issues of both of law and of facts. Section 116C applies the Code of Civil
Procedure as nearly as possible in the determination of the appeal. The power
of the appell,ate courts is very wide. It can reappraise the evidence and reverse
the trial court's findings of fact, but the practice of the appellate court however,
has uniformly been to give the greatest assurance to the
assi:~sme~t of the
evidence made by the judge who hears the witnesses and watches their demeanour and judges of their credibility in the first
instance. The appellate
court may interfere with a finding of fact if the trial court is shown to have
overlooked any material feature in the evidence of a witness or if the balance of
probabilities as io the credibility of the witness is inclined agai_ns~ the opinion,
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LAXMINARAYAN v. RETURNING OFFICER (Dwivedi, /.)
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of th.:: trial court. This limitation on the power of the appellate court · in a
tir&t appeal from decrees will also apply to an election appeal undef s. 116A.
ln an app

## Text

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822
LAXMINARA YAN AND ANOTIIER
v.
RETURNING OFFICER AND OTHERS
September 28, 1973
[P. JAGANMOHAN REDDY AND S. N. DWLYEDI, JJ.]
Representation of the People Act (43 of
1951). Ss.
98,
116A,
119,
123(4)Corrupt practice-Scope of review by appellate Court-'lncurred' in S·
119, meaning of-Conduct of Election Rules, 1961, r. 63-Scope of.
Evidence Act ( 1 of 1872) Ss, 98 and 159 to 161-Record of speeches in
shorthand and long hand-Admissibility.
'Bhrashtachar', meaning of.
JD and RS were two of the five candidates for election to the Lok Sabha.
JD was the returned candidate .and RS polled the next highest number. of votes.
After the counting of the votes, RS applied for a recount under r. 63 of the
Cond.uct of Election RuL~s, 1961. In the petition he alleged that the difference
in votes obtained by JD and himself was marginal, that more than 7000 votes
were declared invalid; that votes have not only been declared as
invalid but
also that ''admitted disputed votes" were not properly counted, and that . the
number of votes declared invalid materially affected the result of the election.
He also alleged certain irregularities. The Returning Officer directed that all the
votes cast in favour of JD and RS as well as the rejected votes should be recounted.
There was a slight discrepancy in the number of votes obtained by
each of the two candidates, and in the number of rejected votes, in the recount,
but there was no effect on the result of the election.
In a petition challenging the election of JD the
followin~ grounds were
urged, (!) that the election should be set aside under s. IQO(!) (iii) and (iv)
of the Representation of the People Act, 1951, because, the votes have-not been
properly counted as valid or invalid and there was a violation of rule 63; and
(2) that JD was guility of corrupt practice under s. 123 ( 4) of the Act in that
statements were made and __ documents published, by person, with the consent of
JD attacking the personal Character of RS; that his election agent distributed a
weekly containing an attack on the personal character of RS; and that JD himself made such statements and published such documents. The petition was dismis.ed by the High Court.
Dismissing the appeal to this Court (except in respect of costs),
HELD : (I) The plea in the election petition that valid votes have been
counted as invalid and invalid votes as valid would not include the plea that
anY valid votes of RS and other candidates have been counted as valid for JD.
Therefore, it was not necessary to recount the votes of candidates other than
JD and RS.
On the allegations contained in the application .to the Returning
Officer he could not have ordered a recount of all the votes and his order
directing recount was not in contravention of rule 68.
The discrepancies in the:
number of votes was satisfactorily explained and there was no acceptable evi-
. dence of the alleged irregularities. [826 C; 827 A-BJ
(2)(i) Section !16A of the Act provides for appeal
to this Court . from
an order of the High Court dismissing an election petition and an appeal lies
on issues of both of law and of facts. Section 116C applies the Code of Civil
Procedure as nearly as possible in the determination of the appeal. The power
of the appell,ate courts is very wide. It can reappraise the evidence and reverse
the trial court's findings of fact, but the practice of the appellate court however,
has uniformly been to give the greatest assurance to the
assi:~sme~t of the
evidence made by the judge who hears the witnesses and watches their demeanour and judges of their credibility in the first
instance. The appellate
court may interfere with a finding of fact if the trial court is shown to have
overlooked any material feature in the evidence of a witness or if the balance of
probabilities as io the credibility of the witness is inclined agai_ns~ the opinion,
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LAXMINARAYAN v. RETURNING OFFICER (Dwivedi, /.)
823
of th.:: trial court. This limitation on the power of the appellate court · in a
tir&t appeal from decrees will also apply to an election appeal undef s. 116A.
ln an appeal bupien is on the- appellant to prove how the judgment under
appeal is wrong. To establish this he must do something mote than merely
ask for reassessment of the evidence. He must show wherein the assessment
had gone wrong. This is especially so when the alleged corrupt practice is of a
quasi cdminal nature; and this Court would be slow to disagree with the finding
ot the High Court that such a charge was not established. [839 G-840 El
Sarav-eeraswami v. Talluri, A.LR. 1949 P.C. 32, Sarju Pershad v. Raja lwaleshwari Pratap Narain Singh, [1950] S.C.R. 781 at p. 784 per Mukherjea J.,
Narbada Prasad v. Chhagaul, [1969] 1 $.C.R. 499 at p. 504 by Hidayiltullah
CJ., D. P. Misra v. Kam Narain !>ilarnui, [1971] 3 S.C.R. 257 at p. 261 per
!>bah. J., Virendra Kumar Saklecha v. Jagiiwan [1973] l S.C.C. 826, referred
to.
(ii) In the present case, the High Court was right in holding that there is
no acceptable evidence, (a) of any consent given by JD to any one for the
making of the various statements or the publishing of documents containing
statements against the personal character ot RS and (b) of the distribution of
the weekly, either by JD or his followers or agents. [834 B-C; 849 F; 850 f. HJ
(iii) As _tegards the statements attributed to JD himself the evidence con~
sists of the "6ral evidence of some witnesses who claimed to have heard the:
statements being made at various meetings, and the oral evidence of two police
witnesses who .took down his speeches in shorthand and one speech in long.
hand.
While assessing the probative value of the oral evidence of the _police.
witnesses it is necessary to remember that the report of a shorthand wnter is
strictly speaking not subst_antive evidence as such, and it can only be used as a
part of the oral evidence.
Three conditions are, however, necessary for ad--
mitti.ng such statements in evidence •. under s. 159 to 161 of the Evidence Act~
(a) the notes must have been taken down by the witnesses as and when thespeeches were being delivered or so soo1,1. afterwards that the speeches "'ere
fresh in their memory, (b) the witnesses must be sure that the speeches have
been correctly recorded by them, and (c) the notes. must be :Qroduced and
shown to the adverse party if he requires them.
In the present case the first
condition may be taken to be satisfied. The third condition was also satisfied.
It could not be. said that merely because the notes of speeches were in short ..
hand they would not be admissible in evidence and that they should have-been
recorded in a language which could be understood by the adverse pa:rty, -According to section 98 of the Evidence Act evidence may be given to show the·
meaning of illegi_ble or not commonly intelligible ·characters or of abbreviations·
etc. Notes in shorhand may be said to in 'not commonly intelligible characters•·
and 'abbreviations. [841 A-842 D]
However, the record of the speeches, made by orie of these witnesses, i\i·
not admissible ia the present case,
~~caus,e the second condition is not satis~
fied.
The evidence shows that therl.! .ire various infirmities and that the extracts·
were not a correct recording of the speeches made by JD. [842 F-G]
Kanti Prasad Jaysha11ker Yagni'k v. Purshottamdas Ranc'hhoddas Patel [1969)"
3 S.C.R. 400 and P. C. Purshothama Reddiar v. S. Perumal (1972] 2 S.C.R. 646,.
distinguished.
(iv) As regards the other police witness according to his notes JD is alleged:
to have made thl! following statements.
(a) That RS was "Bhrasthachar," (b)
'This is a war_ between truth and power.
We have to see whether truth wins·
Jr ~ower wins.
\Ve have: to 'ee whether truth wins or power lcses. whether
falsehoo,l win~ or truth wins.
We: have to see whether corruption wins )r purity,
wins' and (c) 'You k.~ow his (RS) achievements and capacity. I d'J not wish
to speak anything abo"Jt liim. •
The word "Bhrashtachar" means a man of fallen conduct. The High Court,
however, translated it to mean 'corruption', but in the context it is susceptible
of the interpretation of a person who has fallen from orthodox conduct. It is
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SUPREME COUR')' REPORTS
[ 1974] 1 s.c.R.
-one of those flourishes or hyperboles which are the common stock-in-trade of
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election speakers of exploit the emotions of the audience and tO augment their
popular support. As regards the other statements they do not refer to statements of fact in relation to the personal character or conduct of RS.
There
fore. the speeches attributed to JD do not make out any corrupt practic~.
The evidence of the other witnesses was rightly rejected by the High Court.
1846 F; 847 D-EJ
(v) The application for production of the summaries of the notes of the
speeches said to have been sent by the police witnesses to the government for
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corroborating the two witnesses should not be allowed, because apart from the
fact that an elaborate inquiry will have to be made by examining a number of
police witnesses and admitting a large number of documents for finding out whet-
.her summaries or full reports were sent to the government, in view of the.
findings that the record by one of the writings is subject to infirmities and that
the statements in the record of the other witness did not amount to co1111pt
practice, the production of such records will not advance the case of the appellants. [847 F-848 CJ
C
(vi) The contention of the appellants that those records would establish other
jnstances of corrupt practice against JD cannot be entertained, because, such
other instanc?~ were not pleaded in the election petition and JD bad no oppor·
tunity t~ deny them or disprove them. (848 C-D]
(3) While dismissing the petition the High Court ordered that JD would be
·entitled to his costs including costs at the scheduled rate of Rs. 400 /· per day
for 52 hearings, from the petitioners. The sum of Rs. 400 /- per day is prescribed by the Bombay High Court Rules for fees of counsel. Under s. 119 of
D
the Representation of the People Act which deals with costs, "Costs sha II be
in the discretion of the High Court provided thitt whether a petition is dismissed
under clause (a) of section 98 the returned candidate shall be entitled to the
costs incurred by him in contesting the petition and accordingly the High Court
shall make an order for coets in favour of the returned candidate". The petition in the present case was dismissed by the High Court under s. 98(a). But
the word 'incurred' means actually spent.
There is no proof of payment of any
l'ee to counsel by JD. Therefore, he was not entitled to the amount of R!. 400/ ·
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:per diem awarded by the High Court. [851 E-GJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1014 of 1972.
Appeal under section 116 of the Representation of People Act
1951, from the Judgment and Order dated 21st January, 1972 of the
Bombay High Court (Nagpur Bench) at Nagpur in Election Petition
No. 3 of 1971.
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Mc N. Phadke, V. G. Palshikar, D. K. De and H. E. Devani and
A. G . .R.atnapatkhi, fonh1n1ppellants.
A. K. Sen, S. N. Sirpurkar, G. l. Sanghi, D. N. Mishra, 0. ,C •
. Mathur, J. B. Dadachanji, for respondent no. 2.
V. R. Manohar, B. K. De, H. C. Devani, A. C. Ratnaparkhi and
~- Balakrishnan and N. M. Ghatate, for respondent,No. 3.
H. R. Khanna and S. P. Nayar, for respondents Nos. 1 and 21.
The Judgment of the Court was delivered ,by
DWNEDI, J.
The· appellants, LaxrrJnarayan and Marotrao, filed
·an election petition challenging the election
of
J ambuwantrao
Dhote to the Lok ·Sabha from 21 Nagpur Parliamentary Constituency.
·There were five candidates in the run. Dhote was one. He was
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LAXMINARAYAN V. RETURNING OFFICER (Dwivedi, J.)
825
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elected.
The poll was on April 18, 1971. Dhote obtained 1,25,665
votes. The next highest votes were obtained by Rikhabchand Sharma.
He polled 1,23,615 votes.
The election was challenged on diverse gronnds.
There were as
many as 13 issues.
The record of evidence
is
voluminous.
The
judgment of the High Court runs to 244 pages.
The High Court decided all the issues against the appellants.
Hence this appeal.
Sri Phadke, counsel for the appellants, has not covered the whole
ground again; he has confined his arguments to issues 2, 4, 5, 8 and
9.
Thus the scope of inquiry is much narrower in the appeal.
Issue No. 2:
Section 100 of the Representation of the People Act, 1951 (hereinafter called the Act) specifies the grounds on which the election of
a returned candidate may be set aside.
According to s. 100(1) (d)
(iii), the election may be set aside if the result of the election of the
returned candidate has been materially affected
by the improper
reception, refusal or rejection of any vote or the reception of any vote
which is void. Section !OO(l)(d)(iv) provides that the election may
be set aside if the result of the election of the retnrned candidate has
been materially affected by any non-compliance with the provisions
of the Constitution or of the Act or of any Rules or Orders made under
the-Act.
Paragraphs 14, 15 and 16 of the election petition allege facts in
respect of this issue.
According to paragraph 14, votes were counted
in the YMCA Hall on April 19, 1971. There were no proper arrangements for admission of the candidates and their counting agents at
the count. A large number of people had entered into the Hall.
The
counting was not complete on the said date.
There was some counting on the day following, that is, on April 20, 1971. The counting
when completed revealed that 3,46,093 votes were polled in all. , J. B.
Dhote received 1,25,665 votes; R. C. Sharma, 1,23,615, 7425 votes
were rejected votes.
Para!V~ph 15 states that at the end of. the counting R. C. Sharma
made an application to the Returning Officer claiming recount of votes.
The Returning Officer directed that all votes cast in favonr of J. B.
Dhote and R. C. Sharma as well as all the rejected votes should be
re.counted.
He did not order that the votes of other candidates also
should he recounted. Paragraph 16 states that after the recount it
was declared that 3,46,079 votes were polled in all.
The total of
J. B. Dhote came down to 1,25,550; of R. C. Sharma to 1,23,493.
The number of rejected votes went up to 7,597.
It is further alleged that the recount showed that 14 votes were
missing, that many rejected votes were counted as valid and that there·
is a difference in the aggregate of different candidates.
Paragraph 15 then sums up : "It is, therefore, clear that the votes
have not been properly counted as valid or invalid, without a proper
826
SUPREME COURT REPORTS
[ 1974 j 1 S.C.R.
scrutiny required under the law.
This has very much
materially
affected the result of the election.
In tact the recount should have
been for the entire votes cast in the election."
Paragraph 16 states that it was necessary to count all the votes as
there was no proper recount by the Returning: Officer. The recount
itself shows that many rejected votes were counted as valid and many
valid votes were rejected. The tendered votes were not counted and
14 votes were missmg.
The plea in paragraph 16 that valid votes have been counted as invalid and invalid votes as valid would not include the plea that many ·
valid votes of R. C. Sharma and other candidates have been counted as
valid for Dhote. It was accordingly not necessary to recount the votes of
candidates other than Dhote and R. C. Sharma.
The recount of the
rejected votes and of the votes of these two candidates was enough.
The appellants gave an application in the High Court for inspection of
all .the votes.
This application was rejected by an order on November 15, 1971. For the reasons already discussed !lie application was
rightly rejected.
Rule 63 of the Conduct of Election Rules, 1961 provides fiOr the.
recbunt of votes.
According to sub-rule (2) thereof recount of all .
votes or any part may be claimed on behalf of any candidate. An
application should be made on his behalf to the Returning Officer.
The application should state the ground on which the recount is claimed.
The Returning Officer shall decide the question of recount and
make an order either accepting or rejecting the application.
The order
should set forth the reasons.
He may allow the application in whole
or in part.
The application for recount made by R. C. Sharma is Ex.
P. 21 Parazi:aph 1 of the application states that more than 7000
votes were declared invalid.
They were neither shown to him nor to
hls agents.
Lighting aHangements were not satisfactory so that marks
could not be prli)j)erly read at the counting.
Paragraph 6 states that
the difference in votes obtained by Dhote and R. C. Shanna is marginal.
The number of votes declared invalid has materially aff~cted the
result of the election.
Many unauthorised persons entered the hall
and they were interfering with the process of counting.
Paragraph 8
states that the votes declared invalid were not so declared in accordance with the prescribed procedure.
"Admitted disputed
votes"
were not admitted according to the prescribed procedure. So the
prayer for recounting of votes was made.
The main charge is that
the votes· have not only been declared as invalid but also that "admitted disputed votes"; were not pr_operly counted. The Returning Officer
allowed partial recounting.
He directed that all votes cast in favour
of Dhote and R. C. Sharma and all the rejected and invalid votes should
be recounted.
The reason given by him is that the difference of votes
cast in favour of Dhote and R. C. Sharma is only 2049.
He says that
"the margin is small and in the interest of justice I agree to have a
recount of votes" as directed.
Accordingly, the votes of Dhote and
R. C. Sharma were recounted as also invalid votes. The recouutir:g had
no effect on the result of election.
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LAXMINARAYAN V. RETURNING OFFICER (Dwivedi, J.)
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On the allegation contained in the application the Returning Officer
could not have ordered recount of.all the votes.
In our view, the order
of the Returning Officer directing recount was not in contravention of
Rule 63.
The appellants have examined several witnesses in support
of the alleged irregularities, but that evidence has not been accepted
by the High Court. Nothing has been shown to us for taking a different view. The Returning Officer has been examined by the appellants.
He has stated that the count and recount have. been done in accordance with the prescribed procedure.
He has
also explained the
apparently missing 14 votes on recount. According to the Returning
Officer. the discrepancy of 14 votes might be due to the mistake in
counting the votes and making them into bundles of 50 each. In the
recount they recounted only some of those bundles and not all.
For the reasons discussed above, we accept the finding of the High
Court on this issue.
Issue No. 4:
Three or four days prior to poll the Nagpur City District Congress
Committee published an appeal in the riame of Smt. Indira Gandhi to
the voters of the constituency for supporting Rikhabchand Sharma.
On the le(t top of this printed appeal there is a photograph of · Smt.
Indira Gandhi; on the right top there is the picture of a cow and a
calf, the symbol of the Congress candidate.
On the left bottom there
is printed "New Delhi, 8 April, 1971 ;" on the right bottom appears
the signature elf Smt. Indira Gandhi.
On April 16, 1971 one Satya
Narain Sharma issued a statement to the press in respect of this appeal.
The next day, that is, April 17, Tarun Bharat, a newspaper, published
a summary of his statement. The summary states that Satya Narain
Sharma has expressed "doubt about the genuineness of the letter by
the Prime Minister calling upon the voters to vote for Mr. Rikhabchand Sharma." The summary further states that "there is no seal
of the Prime Minister's Secretariat on this letter, nor it is mentioned
to whom this letter is addressed." Satya Narain Sharma is also stated
to have expressed doubt that the Prime Minister, who has avoided
even to mention the name of a candidate, would have issued a letter
in support of him.
The election petition states that Satya Narain
Sharma was an agent of Dhote and that he issued the statement with
the consent of Dhote.
The statement was false and was believed to
be falsf. by Dhote.
I_t was reasonably calculated to prejudice the
prospects of the electiOn of R. C. Sharma. Thus a corrupt practice
under s. 123 ( 4) of the Act has been committed.
The High Court has
held that no such corrupt practice was committed by Dhote. It has
held that Satya Narain Sharma did not make a statement of fact.
He
has expressed an opinion. It has also held that the statement was not
false and that it did not relate to the personal character or conduct of
R. C. Sharma or to his candidature. It has also hdd that Satya Narain
Sharma did not make this statement with the consent of Dhote.
We
shall first consider whether the statement was issued by Satya Narain
Sharma with the consent of Dhote.
828
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[ 1974 l 1 s.c.R.
Satya Narain Sharma was examined by Dhote.
He has denied that
he made the statement with the consent of Dhote. Dhote has stated
that he had not given his consent to any such statement. The High
Court has believed Dhote.
Nothing has been shown to us to take a
different view.
It is true that according to the evidence on record
Satya Narain Sharma seems to have addressed several meetings ia
support of Dhote and that in some of those meetings Dhote had also
delivered speeches. But this circumstance alone would not prove the
consent of Dhote.
As we agree with the High Court that the statement is not proved to have been made with the consent of Dhote, it is
not necessary for us to record a finding on the other aspect of issue
No. 4.
We agree with the High Court that the appellants have failed
to establish this particular corrupt practice.
·
lssue No. 5:
In his return of election expenses Dhote is shown to have spent
Rs. 648/- on the publication of a pamphlet. The nature of the pamphlet does not seem to have been disclosed in the return.
The appellants have alleged in the election petition that document C attached to
the petition is that pamphlet.
Dhote has emp)latically denied that it
was document C.
According to him, it was document 2R 20.
Document C opens witil : "I am contesting this Lok Sabha election
...... against a corrupt candidate of Congress.
The appellants say
that this is a false statement relating to the personal character of
Rikhabchand Sharma. 2R 20 is an · innocuous document. It was
printed by the Narkesari Press and it bears the print line of the press.
The close question is whether document C or document 2R 20 was
published by Dhote. To prove their case, the appellants have examined one witness Prabhakar Sakhardande. He was employed on the
relevant date as a priPter in the Narkesari Press.
He says that document C was printed in the Narkesari Press on Sunday, April 11, 1971.
According to him, it is printed in mono type.
He also says that only
the Narkesari Press in Nagpur has a mono-machine. The. High Court
has not believed him.
He is the President of the Rashtriya Press
Kamgar Sangh which is affiliated to the Indian National Trade Union
Congress.
He does not give out the name of the person wh~ printed
the document C in the N arkesari Press, nor does he disclose the name
of the person who delivered the printed copies to the appropriate authority in the Narkesari Press.
Although he admitted in cross-examination that he had not been to any other press in Nagpur, he has said that
except Narkesari Press no other press in Nagpur has a mono-machine.
Evidently, this part of his evidence does not inspire confidence.
Not
having seen any other press in Nagpur, he could not say that the Narkesari Press alone has got a mono-machine. For these reasons, we
find it difficult to place any reliance on his testimony.
·
Dhote has examined Manohar Bokare in support of his case that
the document 2R 20 was published in the Narkesari Press. Manohar
Bokare is the Manager of the Job Section of the Narkesari Press.
He
says that he receives orders from customers, hands over printed material to them, examines and makes bills and prepares quotations for
printing jobs. Initially, he was summoned by the appellants as their
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LAXMINARAYAN v. RETURNING OFFICER (Dwivedi, J.)
829
witness.
But later they g<ive him up.
So he was examined by Dhote.
He has said that document 2R 20 was published in the Narkesari
Press. He produced the original of the document. He has stated
that B. N. Gaikwad had given him the original for printing. He has
also filed the counter-foil of the bill issued by him in connection with
the printing of the document 2R 20. He has denied that the document C was printed in the Narkesari Press.
The High Court has believed his evidence.
Nothing has been shown to us to enable us to
take a different view.
Sri Phadke has made several comments on his evidence. Firstly,
he has not produced the order book.
But he was never asked by the
appellants to produce the order book. In cross-e4amination he simply said that he has not brought the order book. Secondly, while be
has said that the printed matter was delivered by him to a boy, B. M.
Gaikwad has stated that it was sent for by him through one Doonger
ag~d about 50 years.
This discrepancy is not sufficient to discredit his
evidence.
He was examined several months after the event.
Such a
minor mistake is accordingly not unnatural and may be a slip of
memory.
Thirdly, document C is printed on news print paper. It is.
said that news print paper is not available in the market and that document C must have been printed in the Narkesari Press where Tarun
Bharat was also being printed. But there is some evidence on record
to show that neswprint paper was available in the open market.
That
aside, B. M. Gaikwad has stated that the paper for printing document
2R 20 was supplied by him from the stock of paper belonging to his
party at Chhindwara from where a weekly organ of his pru:ty was 0eing
published. Manohar Bokare has deposed ·that there is an endorsement on the original of 2R 20 that paper was given by the party who
got it printed.
The endorsement was according to him necessary for
the purpose of sales-tax. On his copy o~ the bill there is an endorsement "not taxable".
He has explained that it was necessary to obtain
the signature of the customer if the paper was given by the press ..
Fourthly, the Narkesari Press did not comply with the provisions of
s. 127A of the Act in regard to document 2R 20.
So it should be
held that this document was not published by the Narkesari Press.
Section 127 A(2) provides that no person shall print or cause to be
printed any election pamphlet or poster-(!) unless a declaration as
to the identity of the publisher thereof, signed by him and attested by
two persons to whom he is personally known, is delivered by him to
the printer in duplicate; and (2) unless, within a reasonable time after
the printing of the document, one copy of the declaration is sent by
the printer, together with one copy of the document, if printed in the
capital of the State to the Chief Electoral Officer and in any other case
to the District Magistrate of the District in which it is printed. Mano-·
bar Bokare has admitted in cross-examfuation that he has neither
obtained a declaration from B. M. Gaikwad, nor has he sent a copy
of the document 2R 20 to the District Magistrate, Nagpur.
This is
incomplete and ineffective cross-examination. Manohar Bokare should
have been also asked if he had any explanation for those omissions.
':f'he omissions might have been of some assistance to the appellants·
1f Bokare could not give a proper explanation.
The possibility of
a good explanation cannot be rule& out. We agree with the High1
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S'JP!\EM,; COURT REPORT~
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Court that no adverse infere11ce can be drawn from these breaches
.of law. Fifthly, he could not give the exect date of the printing of
2R 20.
But he has said that no record of the date of printing is
maintained by him.
Lastly, Dhote has admitted that the diction of
the document C resembles his own. It would show that he has
published this document. This criticism has little force. Dhote has
also said that he had made numerous speeches in the course of his
.election. · So it was quite easy to pick out . words and phrases from
his speeches· and piece them together in the document C.
Now, the case of the appellants is that the document C was printed.
The case of Dhote that is 2R 20 was printed. It is significant that
it is not the case of the appellants that two documents were published
;at onee and the same time, one innocuous and the other offending
This has an important bearing on probabilities. It is highly improbable that a candidate would publish an offending document. and show
Jhe expenses illcurred on its printing in nis return of election expenses.
The appellants have examined several witnesses to prove
the
· ,distribution of the document C during the election. The High Court
has disbelieved those witnesses. It has held that from their demeanour
they appear to be tutored witnesses.
Their evidence has not been
pressed in service before us on behalf of the appellants. So we do
,iot deal with . it.
J~e-No. 8:
This is the crucial issue in the appeal.
The appellants' case is
that Pundalik Masurkar and Satya Narain Sharma had delivered
·speeches in three meetings during the election. '.Those meetings were
·held on March 29 and 30, 1971, and April 7, 1971. They were held
lfespectively ·at Nawi Mangalwari Ganji Peth and Maska Sath. By
Jheir. speeches they have committed the corrupt practice specified in
s. 123 ( 4) of the Act. They committed the corrupt practice with the
.consent of Dhote. Dhote, it is alleged, delivered speeches in the said
meetings as well as in the meetings in Chamar N ala "amJ..-Kastufi:hand
Park. The meetings in the latter two places-were held .on April 14
cand 15, 1971. By his speeches, he also has committed the aforesaid
.corrupt practice. The High Court has recorded these findings on this
·issue : (1) the appellants have failed to prove that Dhote made any
-0ffending statements in the aforesaid meetings; (2) they have also
failed to prove that Pundalik Masurkar and Satya Narain Sharma
made any offending statements in the aforesaid meetings; (3) they
·have also failed to prove that Pundalik Masurkar and Satya Narain
Sharma. made any offending statements in those meetings with the
consent of the/ Dhote. It has further held that they have failed
to
prove that the statements ,11ttributed to Dhote, Pundalik Masurkar and
Satya Narain Sharma c9llstituted the corrupt prectice specified
in
s. 123(4) of the Act.
·
The ground of
challenge in . tile petition is
one covered
11y
s. 100(.l)(b) and not s. lOO(l)(d). So we shall first examine the
evidence to find out whether Pundalik Masurkar and Satya Na rain
:Shar~a made the allegedly offending statements with the consent of
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LAXMINARAYAN v. RETURNING OFFICER (Dwivedi, !.)
831
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Dhote. If his consent is not proved, it will not be necessary to examine
the other aspects of this part of the issue.
Nawi Mangalwari Meeting: 29-3-1971 :
The appellants have examined Marot Rao, Ishwar Giri, Shanker
Laxman and Manhor Kashinath
Kalankar.
Dhote has
examined
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himself, Pundalik Masurkar and Satya Narain Sharma.
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According to Ishwar Girl, Dhote was not present in the meeting
while Pundalik Masurkar and Satya Narain Sharma were speaking.
Dhotc came to the meeting just five minutes before the end of Satya
Narain Sharma's speech. Marto Rao and Shanker Laxman say nothing
about the presence of Dhote during the speeches of Pundalik Masurkar
and Satya Narain Sharma. Manohar Kashinath Kalankar is the C.I.D.
Shorthand Writer. He says that he was present in the meeting and
he took down the notes of speeches of various speakers including the
aforesaid two speakers. He says that he remembers that Dhote wa_s
present in the meeting from the very beginning. But there is no note
to that effect in his note-book.
It will accordingly be not safe to
depend on his memory, especially when Ishwar Giri contradicts him.
Pundalik
Masurkar has said that Dhote was not present while he
was speaking. Dhote has said that he was not present when Pundalik
Masurkar and Satya Narain Sharma delivered their
speeches.
He
arrived in the meeting just when Satya Narain Sharma was finishing
his speech. He has further said that Pundalik Masurkar and Satya
Narain Sharma had spoken in the meeting without his knowledge and
consent. He has said that it was not his business to arrange ele<;tion
meetings and to invite speakers.
His election office used to attend
to these matters. His workers use to take him to various meetings
without any prior information of the meetings on his part. SatyaNarain Sharma has said that he did not reporHo any one the contents
of his speeches. He has also said that B. M. Gaikwad, the election
agent of Dhote, used to invite him to speak in the meetings held in
support of Dhote.
This is the entire evidence on the question of
consent.
This evidence would show that Dhote was not present in
the meeting when Pundalik Masurkar and Satya Narain Sharma were
speaking.
He had no prior knowledge of the fact that they would
speak in the meeting. He had not invited them to the meeting. He
denies his consent to their speeches. There is no direct evidence of
consent from the side of the appellants. It is not possible to infer
constructive consent from the foregoing facts and circumstances.
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Ganji Peth Meeting: 30-3-1971 :
The appellants have examined Manohar Kashinath Kalankar, Shesb
Rao Kambale, another C.I.D. Shorthand Writer, Mohd. Yakub
Qamar and Dr. Ram Narain. Dhote has examined himself and Satya
Narain Sharma. There is no direct evidence of consent Mohd. Yalrub
Qamar ano Dr. Ram Narain say nothing about the presence of Dhote
while Satya Narain Sharma was speaking. Manohar Kasbinath
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Kalankar says that he remembers that Dhote was present in the meeting from the very beginning. Shesh Rao, refreshing his memory from
his notes, said that his notes show that Dhote was welcomed and ·
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SUPREME COURT REPORTS
[ 197 4 ] 1 s.c.R.
"therefore I say be was present from the very beginning." The note
book of Manohar Kashinath Kalankar does not re(;()rd that Dbote was
present from -the very begmmng.
lt will not be safe to rely on his
memory. It is true tpa< ;:,hesh Rao has noled in his note book that
Dhote was welcomed .. But from this fact it does not necessarily follow
that he was present from the very beginning. He could be welcomed
whenever' he arrived in the mee<ing.
Dhote has said that when he
reached the meeting, Satya Narain Sharma was 'half way thrcmgh his
speech'. B" t we de not know when Satya Narain Sharma made the
allegedly offending remarks in the course of his speech. lt cannot
theretore be said that those remarks were made in the presence of
Dhote.
So we agree with the High Court that the appellants have
failed to prove tha,t Dhote had given his consent to the speech of
Satya Narain Shanha in this meeting.
Maska Sath M{!eting: 7-4-19'71 :
The witnesses of the appellants for this meeting are
Manobar
Kashinath Kalan!<lar, Shesh Rao Kambale, Manohar Taj~ne, Yadao
Shripurkar and M,arot Rao, Dhote has examined himself anqI Satya Narain Sharma Man\)har Kashinath Kalankar and Shesh Rao Kambctl" arc
the C.l.D. Shorthand Writers. The appellants' witnesses have deposed
that offending speeches were delivered by Dhote and Sl!tya Narain
Sharma. According to _Manohar
Kashinath
Kalankar,
Gunawan!
Nagpure had spoken before Satya Narain Sharma. He says that Dhote
arriv~_d in the meeting while Gunawant Nagpure was speaking and
that
Gunawan!
Nagpure
continued speaking after his arrival.
lie aJso says that he has made a note about Dhote's arrival while
Gunwant Nagpure was speaking in his note-book. He has produced
his .note-book. It begins with the speech of Chandrabhan Bodkar. The
speech is written in shorthand Two-third of the page is covered by
, the speech of Chandrabhan Bodkar, and over the remaining seven lines
· of the page no speech is recorded. The speech of Satya Narain Sharma
is taken down in short-hand on the next page. The contents recorded
over seven lines of the preceding page are these:
"Kamal Kishore Upadhyaya
Something in Short-band
Gunwant Nagpure
(F.B.)
-/2
Sri J. B. Dhote arrived.
Sri Nagpure .. continued speaking."
There is absolutely no difierence in the ink of the notes of the
speeches of Chandrabhan Bodkar a-nd Satya Narain Sharma. But the
ink of the aforesaid quoted lines written in English is visibly different.
This difference is suggestive of later interpolation of the
aforesaid'
quoted lines, the purpose being to prove the presence of Dhote during
Satya Narain Sharma's speech and his implied consent to that speech.
It may, however, be observed that Mano\lar Kashinath K)llankar was
not cross-examined by Dhote on the ~erence in ink. However, suspicious the entry of the af9fesaid lines may be, we are reluctant to draw
any adverse inference against• Manohar Kashinat'1 Kalankar from the
difference in ink for want of (iross-examination. But in view of certain
other sircumstances we do not think it safe to rely on the aforesaid
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LAXMINARAYAN v. ,RETURNING OFFICER (Dwivedi, /.)
833
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note in his note-book. One, Shesh Rao Kambale, another C.I.D. Shorthand writer, was also present in the meeting. He . has taken down in
abort-hand the speeches of Kamal Kishore Upadhayaya,
Gunwant
Nagpure, Keshav Rao Gadekar and Dhotc. He bas not deposed that
Dhotc arrived in the meeting while Gun want N agpure was speaking.
Two Manohar Kashinath Kalankar seems to us to be anxious to help
the cause of the defeated Congress candidate, R. C, Sharma. As reB
gards the meeting held at Na\\i Mangalwari and Ganji Peth, he has
deposed from memory that Dhote was present from the very beginning
of those meetings. It may be observed that he has made no such note
in his note-book. We have already held that Dhote arrived in those
meetings when Satya Narain Sharma was about to finish his speech. We
have disbelieved his st&tement made from memory. It seems to us that
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be has ventured to speak 'from memory' in order to help the appellants
and R:. C. Sharma. Third, Manohar Tajane, Shesh Rao Kambale and
Marot Rao say nothing in their evidence about the presence of Dhote
during the speech of Gun want N agpure and Satya Narain Sharma.
Marot Rao is one of the appellants in this appeal. The note alleged
to have made by Manohar Kashinath Kalankar in his note-book does
not get supporf from their testimony. Fourth, Yadao Shripurkar said
that Dhote was present when Satya Narain Sharma was speaking. The
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High Court has disbelieved him. W c see no reason to difier with the
High Court. He has admitted that he was the Vice-Pr,;sident of the
N1>gpur City Congress Committee. He has also admitted that he has
canvassed and given speeches in support of R. C. Sharma He has distributed cards for R. C. Sharma. He was R. c. Sharma's counting
agent also. He is thus a partisan witness. , The High Court has made
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an adverse note about his demeanour. He is unable to ·explain his
presence in the meeting, for his evidence shows that he had no prior
hformation of the meeting. Although he was very closely connected
with the election campaign of R. C. Sharma, be admits that he informed
neither the Congress Election Office nor R. C. Sharma of the offending speeches of Dhote and Satya Narain Sharma. According to him, he
and Manohar Tajane went together to the meeting. He further says
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that when Satya Narain Sharma finished his speech, both of them were
away to Itwari Chowk for about H hours for taking tea.